MAGANBHAI D DESAI Vs. LILY GOMES

JUDGEMENT

(1.) This is a proceeding arising under section 145 of the Code of Criminal Procedure.

(2.) The dispute between the parties is in respect of a small piece of open-land, presumably admeasuring about 6 sq. metres in area. The first respondent Smt. Lily Gomes and her three sisters are the owners of an open land bearing Survey No. 1, Hissa No. 2, situate at Oshivra, Andheri, Bombay, they having obtained the same by virtue of a Will, dated November, 17, 1955, made by their father Braz Alex Gomes, who died on June 15, 1960. The petitioner Maganbhai Desai claims to be the owner of an open land, admeasuring about 8 gunthas situate on the eastern side of the afore-mentioned land belonging to Smt. Lily Gomes and her three sisters. According to him, this land admeasuring 8 gunthas in area was purchased by him from one Mahadev Abaji Rokhle for a consideration of Rs. 1000/- on June 1, 1949 and he has been in actual possession and enjoyment of this land since that time. It is also his case that this land, which was forming part of S. No. 1, Hissa No. 5, is now shown in the survey records as part of S. No. 1, Hissa Nos. 2-E and 2-H. He has been carrying on some correspondence with the revenue and survey authorities saying that there is some mistake in the description of the land and the same should be rectified.

(3.) On August 5, 1972, the petitioner Maganbhai Desai constructed a small shed or booth on an area admeasuring about 6 sq. metres which, according to him, within the boundaries of his own land and he also seems to have fenced that portion. In this connection, a dispute arose between the parties, inasmuch as the first respondent Smt. Lily Gomes and her sisters claim that the shed or booth had been constructed on some portion of their own land unauthorisedly and wrongfully. They also gave notice to the petitioner Maganbhai Desai on August 9, 1972 and eventually on September 6, 1972, the first respondent Smt. Gomes made an application to the Additional Chief Presidency Magistrate, 9th Court, Bandra, Bombay, saying that the petitioner Maganbhai Desai and his hirelings were indulging in giving threats and there was every likelihood of a breach of the peace. On being satisfied that there was a dispute likely to cause a breach of the peace concerning the shed or booth constructed by the petitioner Maganbhai Desai, the learned Magistrate passed a preliminary order calling upon both the parties of put in their say, documents and affidavits, if any, in support of their respective contentions in regard to the possession of the property in dispute. Accordingly, both the parties appeared before the learned Magistrate and filed their written statements, documents and affidavits etc. in support of their respective contentions. On a consideration of all the oral and documentary evidence adduced by both the contending parties, the learned Magistrate came to the conclusion that the first respondents Smt. Lily Gomes was entitled to possession of the land comprised in City Survey Nos. 357 and 359 situate at Oshivara, Andheri, Bombay, and passed an order declaring that the first respondent Smt. Lily Gomes was entitled to possession of the land comprised in City Survey Nos. 357 and 359 until evicted therefrom in due course of law and forbidding all disturbance to such possession until such eviction. He also directed the petitioner Maganbhai Desai to remove the structure newly constructed by him and so also the fencing put up by him and to hand over the vacant portion covered by this structure to the first respondent Smt. Lily Gomes. He was also ordered to pay a sum of Rs. 100/- by way of costs to her. Being aggrieved by the decision of the learned Magistrate, the petitioner Maganbhai Desai has come up in revision to this Court.